1. Attendance: Regular class attendance is required. If you miss four or more classes, you may be subject to sanctions, ranging from additional assignments, to grade reduction, to being involuntarily withdrawn from the course.
2. Preparation: Students should be prepared for class. Preparation includes reading the assigned materials and being prepared to participate in class discussion. This is a small class; the quality of the experience for all of us will depend in large part on the willingness of each of us to contribute.
In addition to discussion based on the assigned readings, there may be hypotheticals or exercises that will build on these materials. Material related to exercises will be posted to the class website. You should check this site regularly, since you will be irrebuttably presumed to have seen anything posted there!
Some exercises may be designed to be done during class, individually or as part of a group. I will divide the class, as needed, into such groups. In addition, there may be exercises to be prepared prior to class and turned in. These will always be assigned in a way that allows for a weekend between the day the assignment is posted and the day it is due.
If there are special reasons why you will not be prepared to participate in class discussion on a particular day, you may so indicate to me prior to the start of that class, and you will not be called on. This privilege may be withdrawn as to any individual if it is abused.
3. Office hours: please feel free to come by during office hours or by appointment. I am also frequently available at other times (except for the hours before classes). Feel free to stop in if my door is open; I’ll tell you if it’s a bad time.
4. Grading: The grade will be based primarily on the final examination. Up to 20% of the grade (depending on the number of such quizzes or assignments) may be based on the grades on quizzes plus any exercises which have been designated as to be graded. You should use code names for the quizzes and for exercises which are solely written (not doable if the exercise will be in part oral!!). Please send your preferred code name to Ms. Lastres (Do NOT cc me on this email)by 4 pm on August 27. When exercises are done in a group all group members will receive the same grade.
Either ten or twenty percent of your grade, as you choose, will be based on the final project (see below).
Finally, you will be eligible for a “bump up” for particularly good class participation [including participation in both general class discussion and exercises which are not separately graded]. Bump-ups can increase the final grade where the numerical grade is in the upper range of a particular grade (i.e. a high C+, but not a C+ barely above the C/C+ dividing line, could become a B). Grades can also be lowered for significant failures to demonstrate that you have done the needed preparation for class.
5. Final projects: Students will prepare a final project related to malpractice reform. This project will be done in groups. Since every group will present in class, I want larger groups of 6-8. You may indicate to me who you wish to have in your group; I will try to accommodate all preferences to the extent practicable. Please indicate who you would like in your group by email to me by 5 pm September 24. (Since there is a class presentation component, use of code names is impractical.). There are six different projects to which teams may ask to be assigned. Teams should indicate, at the same time that they submit the proposed team membership, their first and second preferences for a project topic and the topic that they most want not to do. I will do my best to adhere to these preferences, consistent with having each topic covered by a team.
All members of the group will receive the same grade on the project. However, your decision whether you want the project to count for ten or twenty percent of your final grade may be made individually. Please inform Ms. Lastres of that choice by 5 pm on September 24.
The project will consist of two parts: a presentation to the class of approximately twenty minutes (the presentations will take place during the last two class periods) and a paper to be submitted to me by the end of classes.
The first two project topics are background papers/presentations to be done first, setting out the structures to which malpractice reform proposals respond.
1. Malpractice and avoidable medical error. Describe the problem of avoidable medical error: its extent and its consequences (and the difference between “avoidable medical error” and “malpractice.” What role does malpractice litigation play in reducing (or worsening) the problem of avoidable medical error? What role do the other legal structures we have examined (credentialing/supervision by hospitals, regulation by Boards of Medicine) play?
2. Medical malpractice. Describe (relatively summarily) the current system of malpractice law. What role does it play in reducing (or worsening) the problem of avoidable medical error? (note that this is also being examined by group one). How else does malpractice law (and the responses to it by other actors in the health care system, such as physicians, hospitals and insurers, affect the costs, quality and/or access to health care?
For each of the above, there is a significant existing literature and substantial dispute about the facts among both interest groups (e.g. the American Association for Justice [the trial lawyers], the American Medical Association), think tanks of left and right, politicians and academics. You should present the controversy, although you may give reasons why you believe some positions are more accurate/fair than others.
The remaining projects will each focus on a particular proposed reform or set of reforms. In each case, the team should describe the proposals, and present the arguments of the proponents for what problems with the current/prior system the proposal responds to and how it would improve matters. If the proposal is one that has already been adopted in some jurisdictions, they should – to the extent data is available – examine how well it has in fact worked. They should also examine what problems the proposal would create or exacerbate, including a consideration of any constitutional problems. Again, you should to the extent possible examine the arguments of both proponents and opponents of the proposal. (You need not detail all the variants within a topic, but should provide a clear sense of at least one variation and some sense of the scope and extent of the proposed (or enacted) changes.)
3. Damage limitations including caps on all damages, non-economic damages and/or punitive damages.
4. Process changes to the existing malpractice system, including requirements of screening panels, other pre-suit obligations, mandatory mediation, limitations on plaintiff’s attorney’s fees, and special statutes of limitations.
5. Enterprise liability (making a hospital or a managed care organization responsible for all malpractice occurring within its institution, including that of physicians who are not employees of the institution).
6. Health courts (alternatives to the court system to which malpractice disputes would be directed).
7. If a team wishes to propose examining some other significant malpractice reform proposal, they may provide me with a 1-2 page proposal concurrent with the submission of the proposed team and I will consider it.
6. Cancellations and Make-up Classes: If and when there are any cancellations, this fact and the scheduled make up, if any, will be posted on the website well ahead of the date of any such class. There will be no class on August 26 (when I will be attending a conference) or on September 9 for Rosh HaShanah. Information on make-ups, if needed, will be provided at a later date. Given the extent of obligations outside class and reading for class, I do not believe the ABA rules will require that every missed class have a corresponding make-up class.
7. I will have one guest speaker and hope to add another; I also will, as appropriate add some more timely materials. Keep checking the class website regularly for these updates. I will also post there comments and questions to guide the reading and information about assigned exercises.
8. Notices to the class will be posted to the website. Please email questions or comments about the materials to me. If these seem likely to be of interest to the group generally, I will respond and post the question/comment and response on the website or, if of more general interest, to the blog. If you wish to remain anonymous, please so indicate and I will arrange to respond in a way that maintains your anonymity. Remember that you are unlikely to be the only person puzzled by a particular rule, case or hypothetical. Sharing your ignorance is a step toward shared understanding
9 Class blog. Participation in the class blog, while not required, is strongly encouraged and will be taken into account in assessing the quality and quantity of “class participation.” Both the blog and blogging directions can be accessed through my website..
10. The subject of “law and medicine” is a subset of “health law,” which also includes, under the usual academic divisions, “finance and regulation of the health care industry,” and “bioethics.” As is apparent from the first few assignments, this division is somewhat artificial: one cannot fully understand the issues of malpractice, credentialing, duty to treat, etc. (the subject of this course) without understanding the issues of the other two courses. Yet, to understand all of health law, even in a fairly superficial fashion, would take far more than three credits. We will attempt, during the semester, to remain appropriately cognizant of these complexities of the health care system (as well as the relationship of law and medicine to broader issues of tort, contract and evidence law) without being drawn away from the core of this particular subject.
Two foundations provide regular analyses of health care issues that are often timely and almost always incisive, informative and well-written for the intelligent layperson. You are encouraged to check in at the Kaiser Family Foundation, the Commonwealth Fund, and/or the Robert Wood Johnson Foundation,
Note also that the cases and materials sometimes use medical terminology which may seem as incomprehensible to many of you as legal terminology once did. You can sometimes understand enough from context, or you may find definitions on-line. See, e.g.,
dictionary.html
www.online-medical-dictionary.org/